Government approvals may not trigger a EIS under NEPA — Minard Run Oil Company et al. v. United States Forest Service et al., Nos. 10-1265-10-2332 (3rd Cir. September 20, 2011)

This case is a dispute between the U.S.Forest Service and owners of mineral rights in the Allegheny National Forest. Mineral rights owners are entitled to reasonable use of the surface to drill for oil and gas after providing a sixty-day notice after which the Service would issue a Notice to Proceed. The Service had taken the position that issuance of an NTP to a mineral rights owner was not a “major federal action” that would trigger an environmental analysis under NEPA. The National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (NEPA) requires federal agencies to file an environmental impact study (EIS) before taking any “major federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C).
As a result of settlements with environmental groups, the Service postponed the issuance of any Notices to Proceed until a multi-year, forest-wide Environmental Impact Study (EIS) was completed. Mineral owners and related businesses filed suit to enjoin the service from implementing the policy, arguing that the new policy effectively put them out of business.

The District Court found that the change in policy by the Service constituted a “fundamental ‘sea change’ in the Service’s policy; therefore, they constituted final agency action subject to review under the APA. The court also found that the action by the Service was essentially a drilling ban and that the Service had not followed the APA’s notice and comment procedures. Finally, the district court found that the ban was not justified under NEPA because the issuance of an NTP was not a major federal action. The district court then issued an injunction.

On appeal the Circuit court agreed with the district court and affirmed the decision in all respects.

http://www.ca3.uscourts.gov/opinarch/101265p.pdf

— James L. Pray

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About James Pray

Attorney with BrownWinick Law Firm in Des Moines, Iowa.
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